maryland circuit court for anne arundel county
TRANSCRIPT
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Maryland Circuit Court for Anne Arundel County
_____________________________________ ) CHRISTOPHER DAVID MCKEON, ) )
Plaintiff, ) )
v. ) ) Case No. 02-C-08-132379 I J Charing Cross Townhouse Condominium, Inc.,
) )
Joseph R. DeSantis, ) Carol Frankhouser, ) Kathleen Marek, ) Michael J. Helpa, ) COMANCO, INC., ) Ruth Angell, )
) Defendants. )
)
PLAINTIFF’S MOTION FOR AN EMERGENCY EX PARTE TEMPORARY
RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY A
PRELIMINARY INJUNCTION SHOULD NOT ISSUE
COMES NOW the Plaintiff, Christopher D. McKeon (“Plaintiff”), Pro Se, having
concurrently filed his Complaint in this matter seeking injunctive and other ancillary
relief, and moves this Court for an emergency Ex parte Temporary Restraining Order and
Order to Show Cause Why a Preliminary Injunction Should Not Issue (“TRO”). In
support of his Motion, Plaintiff respectfully refers this Court to his Verified
Memorandum of Points and Authorities in Support of Plaintiff’s motion.
Respectfully submitted,
______________________________ Christopher McKeon 1120 Soho Court Crofton, MD 21114 Plaintiff, Pro Se 202-441-9853
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Maryland Circuit Court for Anne Arundel County
_____________________________________ ) CHRISTOPHER DAVID MCKEON, ) )
Plaintiff, ) )
v. ) ) Case No. Charing Cross Townhouse Condominium, Inc.,
) )
Joseph R. DeSantis, ) Carol Frankhouser, ) Kathleen Marek, ) Michael J. Helpa, ) COMANCO, INC., ) Ruth Angell, )
) Defendants. )
)
PLAINTIFF’S VERIFIED MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF HIS MOTION FOR AN EMERGENCY EX PARTE
TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY
A PRELIMINARY INJUNCTION SHOULD NOT ISSUE
COMES NOW the Plaintiff, Christopher D. McKeon (“Plaintiff”), Pro Se, and submits
this verified memorandum of points and authorities in support of his Plaintiff’s Motion
for an Emergency Ex Parte Temporary Restraining Order and Order to Show Cause why
a Preliminary Injunction Should Not Issue.
1. Plaintiff incorporates by reference the entire record in the above-captioned
action and filed concurrently with the instant motion as if fully set forth herein.
2. All cited Exhibits are attached to the instant Memorandum.
3. The Charter, Declaration, Condominium Plat, By Laws, other rules and
regulations of the Association (hereinafter “By Laws”); the Maryland
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Condominium Act (hereinafter “the Act”) and the General Maryland
Corporation Law (hereinafter “MCL”) may hereinafter be collectively referred
to as “governing laws.”
4. Table of Contents:
a. (I) Plaintiff’s Requested TRO and Supporting Argument 3
b. (II) Statement of Facts 9
(1) Applicability of Statute, Rule of Construction, Misc 9
(2) Board and Duties of President 10
(3) Elections 16
(4) Open Meetings 24
(5) Email Voting by the Board 27
(6) Vacancies and Director Removal 29
(7) Record-Keeping 31
(8) Covenant Enforcement 35
(9) Fiduciary Duty 37
(10) Acts by Comanco 41
c. Conclusion 46
I. PLAINTIFF’S REQUESTED TRO AND SUPPORTING ARGUMENT
5. Plaintiff seeks an Order:
a. Temporarily restraining Defendants from further violations of the
governing laws as enumerated in the Complaint and infra which include,
but are herein not limited to: open meetings requirement; elections; email
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voting prohibitions; the proper calling of meetings of the Board and
Members; records maintenance and protection;
b. Temporarily restrain Defendants from attending, conducting or transacting
any Association business at the June 19, 2008 Board meeting because
Defendants have not informed Members of the substantive issues
regarding elections, director terms, legal status and membership of the
Board upon which Defendants have indicated they will act;
c. Temporarily removing from Defendants DeSantis, Frankhouser, Helpa
and Marek any and all authority to act as directors, officers or employees
of the Association, as removal is likely to be granted on the merits; and
temporarily reinstating all authority to act as directors to Tom Knighten
and Charlene Julien whose statutory terms are unexpired and whose
unlawful removal (infra, 61-68) is likely to be reversed on the merits;
d. Temporarily restraining and enjoining Defendants from destroying,
concealing, manipulating or falsifying Association records and from
transferring, concealing or otherwise disposing of related evidence;
e. Ordering a special meeting of the Members to convene within 15 days of
this Court’s Order for the purpose of fully disclosing to the Members the
instant Complaint, supporting documents and pleadings, and correcting all
aspects of the elections and the Board’s legal status and membership so as
to enable a lawful annual meeting of the Members; Establishing rules to
ensure quorum at said meeting as this Court deems appropriate; Ordering
Defendant Comanco to provide lawful notice at a suitable venue,
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including full disclosure of the instant Complaint, within five (5) days or
less of this Court’s order;
f. Granting leave for expedited Discovery;
g. Requiring Defendants to show cause why this Court should not issue a
preliminary injunction extending such temporary relief pending an
adjudication on the merits;
h. Award Plaintiff a reasonable amount for fees and expenses incurred in
connection with these proceedings pursuant to By Laws Article XVIII
Section 5 and § 11-113(c) of the Maryland Condominium Act; and
i. Order such other relief as this Court deems proper and necessary.
6. The supporting documents to the instant Complaint establish Plaintiff has
attempted without success since November 2007 to inform Defendants of the violations
to the governing laws caused by their actions, and to reason with and attempt to reduce or
eliminate said violations.
7. Md. Rule 15-502(b) permits this Court to grant an injunction as justice may
require. Plaintiff believes the instant Complaint meets the factors set forth in Dept. of
Transportation v. Armacost, 299 Md. 392, 404-05 (1984).
7. Regarding the likelihood of succeeding on the merits, “[i]t is not necessary
that the moving party's right to a final decision after trial be wholly without doubt; rather
the burden is on the party seeking relief to make a prima facie case showing a reasonable
probability that it will prevail on the merits.” Punnett v. Carter, 621 F.2d 578, 583 (3d
Cir. 1980) The facts enumerating specific and multitudinous violations of the governing
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laws and the irreparable harm to Plaintiff and Members thereto, documented infra and in
the exhibits to the instant Motion, establish that Plaintiff has raised serious and
substantive claims with supporting facts that make a prima facie case there is a
reasonable probability of success on the merits on one or more of the claims.
8. Granting the instant motion will not cause greater injury to Defendants than
denying it causes Plaintiff and Members. Indeed, Defendants’ demonstrable pattern of
engaging in substantive violations of the governing laws in full knowledge their actions
constitute violations indicates that continuing on their business-as-usual course into the
June 19, 2008 meeting without disclosing to Members the substantive electoral issues at
play and the Board’s subordinate role to the Members in addressing them, will in all
likelihood cause even greater injury to Plaintiff and Members. Plaintiff is merely asking
this Court to suspend the Board meeting until and to help guarantee the Members are able
to meet and address the electoral and Board membership issues, as is their right in the By
Laws. On balance, the very negligible injury to Defendants or to the Association in
delaying a Board meeting is weightily offset by the substantive and irreparable injury to
Plaintiff and Members that Defendants’ prevention of disclosure will inure.
9. Cases involving ongoing violations and deceptive practices such as this fit
squarely within the category of cases where ex parte relief is appropriate and necessary.
As in other circumstances where a defendant shows a demonstrable pattern of violations,
Defendants, by voting directors off the Board at undisclosed meetings and manipulating
the ballot and terms of office, and their efforts to ignore or squelch opposition to these
and other violations, demonstrate they cannot reasonably be considered disinterested or
independent and will pursue their own ends regardless of fact, governing laws or the best
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interests of the Association. Absent an immediate ex parte TRO with evidence
preservation and restraint from conducting the affairs of the Association while the alleged
violations are sorted out, evidence heard and corrections openly debated and enacted by
Members, additional irreparable injury, loss, or damage to Plaintiff and Members will
likely result.
10. The extraordinary relief granted by ex parte relief is necessary here. An ex
parte TRO is warranted where the facts show that irreparable injury, loss, or damage will
result before the defendant can be heard in opposition. The June 19, 2008 Board meeting
is only two days away, Defendants are not independent, and there is no other remedy at
law. Defendants’ demonstrable pattern of obfuscating and obstructing Plaintiff, the
sudden change of meeting date, time and to a larger venue, and Defendants’ failure and
refusal to disclose pertinent information regarding the agenda to both Plaintiff—who is a
director and certainly entitled to disclosure—and Members reasonably supports the
presumption that Defendants plan:
1.1 To bring a group too large for the routine and customary venue used
for 26 years in order to obstruct and intimidate Plaintiff and Members from a
fair, forthright and duly diligent investigation and remediation as the facts
require;
1.2 To attempt to remediate to Defendants’ best interests via Board vote
matters that are statutorily and necessarily within the realm of the Members to
resolve because they involve elections, terms for directors and the legal status
and membership of the Board;
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1.3 To prevent participation, open discussion and full disclosure to the
Members of the problems and facts enumerated in the instant Complaint,
causing Plaintiff and Members to suffer further loss of rights and participation
in the deliberative affairs of the Association, and hence greater irreparable
injury.
11. As explained more thoroughly in the Complaint and the Statement of Facts,
infra, Defendants’ practices are permeated by, and reliant upon, deceptive acts that
violate the governing laws so as to keep Plaintiff and Members ignorant of Defendants’
continuing violations, to prevent disclosure and to ensure Members are unsuccessful in
challenging them.
12. Hence, absent emergency ex parte relief irreparable injury, loss, or damage
will likely result if Defendants fail to be restrained by this Court on or before June 19,
2008 and thereafter, and are allowed to conduct business as usual.
13. Finally, the rights and welfare of the 122 Members of the Association—
compromised and injured by Defendants’ violation of the governing laws and usurpation
of Members prerogatives and electoral will—is a compelling and substantive public
interest for this Court to protect by granting Plaintiff’s instant Motion.
14. Plaintiff respectfully refers this Court to Plaintiff's Statement of Facts, infra,
and its supporting exhibits. Plaintiff has not previously applied for relief sought in this ex
parte motion or any similar relief against Defendants aside from that sought in the
concurrently filed Complaint.
15. Pursuant to Rule 1-351 of the Maryland Rules, Plaintiff certifies that prior to
the time he presents this application to the Court, Defendant Comanco, agent for the
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Association and Defendants, was notified via telephone and/or email of the time and
place of presentation to the Court of the instant motion.
II. STATEMENT OF FACTS
APPLICABILITY OF STATUTE, RULE OF CONSTRUCTION, MISC
17. The Declaration, Condominium Plat, By Laws and other rules of the
Association are subordinate to the Act pursuant to §11-124(e) of the Act and By Laws
Article XVIII Section 2.
18. By Laws Article III Section 2 and § 11-109(d) establishes that Title 5 Subtitle
2 of the Corporations Article, Annotated Code of Maryland pertaining to non-stock
corporations, not inconsistent with the Act shall govern the Association. MCL § 5-201
establishes that the provisions of General Maryland Corporation Law shall govern Title 5
Subtitle 2 except as therein noted in § 5-201(a) and (b).
19. An audit of the Association’s Board and annual meeting minutes, election
records and certain covenant enforcement records undertaken by Plaintiff March 3 – June
4, 2008 and included as supporting documentation in Plaintiff’s May 23, 2008 complaint
to the Consumer Protection Division of the Maryland Office of Attorney General (“the
Audit”) provides the facts and information that supports Plaintiff’s instant complaint.
Plaintiff incorporates by reference the Audit as if fully set forth herein. (Audit, Exhibit E)
20. Plaintiff transferred his handwritten notes taken during the Audit to typed
documentation (“the Notes”) that provides the notational support to the Audit. Plaintiff
incorporates by reference the Notes as if fully set forth herein (Notes, Exhibit E)
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21. The record persuasively indicates that when Plaintiff questions or opposes
Defendants DeSantis and Comanco’s efforts, he is frequently excluded from subsequent
communications on that matter. When Defendants then vote by phone or email,
Defendant Comanco reports to Members or contractors “the Board” has acted.
BOARD AND DUTIES OF PRESIDENT
22. The By Laws Article V Sections 1 and 3 vest the powers and duties of the
Association in a board of directors.
23. The By Laws Article V Sections 10, 11 and 13 specify the Board may meet,
conduct and transact Association business at regular or special meetings of the Board
with quorum. Except as provided in § 11-109.1 of the Act and MCL §2-408(c), § 11-109
of the Act specifies that all meetings of a governing body shall be open to the members of
the Association (“the Members”) and that voting shall be by majority.
24. By Laws Article V Section 10 state a majority of the Board shall call all
regular meetings of the Board.
25. The By Laws do not grant any powers and duties of the Association to any
one or more individuals acting outside the collective will of the Board, except by
resolution of the Board at a duly called meeting of the Board, consistent with the By
Laws and pursuant to MCL § 2-408.
26. The By Laws limit the powers and duties of the Board to actions that are
“consistent with law and the provisions of these By-Laws and the Declaration.” (Article
V Section 3)
27. The By Laws specify the duties of the president as the following: 1) To call a
special meeting of the members on the Board’s resolution or by a petition of the members
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(Article IV Section 3); 2) To call a special meeting of the Board (Article V Section 11);
3) to preside at all meetings of the members and the Board, to appoint committees, be the
chief executive officer and to “have all of the general powers and duties which are
usually vested in the office of president of a corporation” (Article VI Section 4); 4) To act
as the Board determines, consistent with the By Laws (MCL § 2-414(a)(2)).
28. Plaintiff asserts and maintains the “general powers and duties which are
usually vested in the office of president of the corporation” cannot and must not empower
or authorize the Board president to violate, circumvent, ignore or act unencumbered by
the By Laws or relevant Maryland laws, or act on voted resolutions or non-voted tacit
authorizations of the Board that, in acting upon or in consequence of them—or in
enlisting, encouraging or causing others to so act—causes the Board president and hence
the Board to be in violation of the By Laws or relevant Maryland laws.
29. Indeed, MCL § 2-414 establishes that an officer “has the authority and shall
perform the duties in the management of the assets and affairs of the corporation as: (1)
Provided in the bylaws; and (2) Determined from time to time by resolution of the board
of directors not inconsistent with the bylaws. In the instances enumerated herein and
others, Defendant DeSantis routinely exceeds his enumerated powers and acts without the
resolution of the Board not inconsistent with the By Laws.
30. Plaintiff asserts and maintains that the following facts exemplify the routine,
historical pattern of governing laws violations by Defendant DeSantis, encouraged and
abetted by other Defendant Board members’ tacit authorization by silence:
a. 9/27/2007: Authorized Defendant Comanco to hire a recording
secretary without Board approval for the expenditure for a closed meeting
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10/4/2007 that does not meet the requirements of § 11-109.1 of the Act. In so
doing, Defendant Comanco ignored its own policy conveyed to Plaintiff
11/6/2007 that a majority of the Board must agree to incur costs. (Email:
“Charing Cross - RE: contact info,” Exhibit F)
b. 11/5/2007: Incurred attorney expenses without notification to or
approval by the Board by instructing Defendant Comanco by telephone to
forward Plaintiff’s emails to the Association attorney Michael S. Neall (“the
Attorney”), and by initiating a telephone conversation with the attorney which
led to an 11/6/07 written legal opinion to Plaintiff without the Board’s
knowledge or approval, as evidenced by Defendant Marek’s 11/23/2007 email
that noted, “Got your email and I'm confused and totally ‘out of the loop’
regarding your letter to Ruth/Comanco......what letter did you receive?? Don't
have a clue what is going on, but I'm sure we will address all issues at the
Board Meeting on Tuesday.” (Unit Activity Report 11/15/07, Exhibit C)
c. 11/6/2007: At the same time Defendant Comanco informed Plaintiff
contact with the Attorney was impermissible without Board approval,
Comanco was aware the Association attorney was mailing an 11/6/07 legal
opinion per Defendant DeSantis’ 11/5/07 request without Board knowledge or
approval. (Unit Activity Report 11/15/07, Exhibit C)
d. 11/12/2007: Caused Defendant Comanco to write and mail a letter not
authorized by and without the knowledge of the Board to Plaintiff providing
the Board’s official position regarding his balcony, signed by Defendant
Comanco on behalf of the Board. (Exhibit G)
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e. 1/25/2008: Incurred attorney expenses without Board approval by
holding a telephone conversation with the Attorney, and informed Defendant
Comanco (but not the Board) via telephone, noting, “I spoke with Mike Neall
and he knows what the agenda is.” (Unit Activity Report 2/21/08, Exhibit C)
f. 2/8/2008: Made a unilateral “executive decision” outside of a duly
called meeting of the Board to approve a change in shingle color for a minor
roof repair to 1029 Shire Court when he determined unanimous written
approval in compliance with the governing laws could not be had. The record
shows he spoke only with Defendant Frankhouser and could not contact
Defendant Helpa as a rationale for his decision. Plaintiff complained to the
Board and dissented in two 2/13/08 emails to which Defendants are
unresponsive, noting that Defendant DeSantis’ act created a credible
impression that he suspended the rules to approve the homeowners’ shingle
color request if no insurance claim was pursued against the Association by the
homeowner. (Unit Activity Report 2/21/08 pp 24-29, Exhibit C)
g. 2/15/2008: Telephoned Defendant Comanco to inform her that he is
calling a contractor to fix his roof at Association expense because “It is wind
damage and is covered under the insurance.” On the same day, Defendant
Comanco telephoned Defendant DeSantis and asks, “Do you want to get
Board approval first?” There is no recorded response from Defendant
DeSantis, who so notifies the Board 2/15/08 via email of his action, because
“Ruth is out today.” Plaintiff demanded Defendant Comanco act as though
any homeowner had just taken such action. Defendants were unresponsive.
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Defendant Comanco subsequently notified Defendant DeSantis “Do you
realize that Chris is continuing to cc Mike Neall on all his emails?” (Unit
Activity Report 2/21/08 pp 30-31, 35-36, Exhibit C) After Plaintiff’s 2/18/08
email complaint to Defendants, Defendant DeSantis notified Defendant
Comanco (but not the Board) that he was suspending repairs to his roof until it
could be voted on at the next regular meeting of the Board; however, Plaintiff
visually verified the repairs were in fact made the week of February 18, 2008.
Defendant DeSantis failed and refused to inform the Board of the $250 repair
until the 2/26/08 regular meeting of the Board and only after Plaintiff
demanded debate. The Board took no vote regarding his roof repair, nor did
Defendants DeSantis or Comanco ever disclose who paid for it. (Minutes
2/26/08 p 4, Exhibit B)
h. 3/26/2008: Incurred attorney expense without the knowledge of or
approval by the Board by requesting a legal opinion from and consulting with
the Attorney regarding correcting the staggered term of office. This request
resulted in a 5/9/2008 letter by the Attorney based upon false and misleading
information to further Defendant DeSantis’ personal interests and
promulgated solutions that violate the Association’s governing documents.
(Unit Activity Report, 4/15/08 p 1; 5/20/08 pp 1-2, 6-7, Exhibit C, 5/9/08
letter, Exhibit G) Defendants were unresponsive to Plaintiff’s response.
(Email “Notice of complaint to the office of attorney general,” “Attorney
conflict of interest,” Exhibit F)
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i. Upon information and belief Defendant Comanco verbally told one or
more homeowners during her follow-up Spring walk-through the last week of
May or the first week of June 2008 that a general meeting of the members or
of the Board was being called. Defendant Comanco responded to Plaintiff’s
request for information via email June 5, 2008 that the June 24, 2008 regular
meeting of the Board was cancelled because of “scheduling conflicts” and a
June 19, 2008 regular meeting of the Board was called without Plaintiff’s
knowledge or a vote by the Board as required in By Laws Article V Section
10. Defendants were unresponsive to Plaintiff’s follow-up June 5, 2008 email
requesting to know who cancelled and called the meetings, how and why it
was done, show schedule conflicts were involved and why Plaintiff’s potential
schedule conflicts were not requested. (Email “115-RE: general meeting of
the members?” Exhibit F) Plaintiff reasonably assumes and asserts said
undisclosed person(s) is Defendant DeSantis and one or more Defendants
acting via silent majority in a closed meeting.
j. Defendants DeSantis or Ruth Angell initiated a series of phone calls
3/26/2008 – 5/22/08 instructing the Association attorney to prepare a written
legal opinion regarding correcting the Association’s terms of office, without
the knowledge or approval of the Board until 5/22/08 when the Management
Report with the Attorney’s 5/9/08 written legal advice on correcting terms of
office was mailed to Board members. (Unit Activity Report 4/15/08 pp 1, 7-8
and 5/20/08 pp 1-2, 5-7, Exhibits C)
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k. On 4/23/2008 Defendant DeSantis unilaterally committed the
Association to a $100 contract to remove a tree, and in so doing cancelled a
more comprehensive proposal from JAMS for the same tree scheduled to
come before the Board 5/27/08. Defendant DeSantis did not inform the Board
until the 5/27/08 regular meeting of the Board, over one full month after his
action. This foreclosed any chance for Plaintiff, members of the Board or the
Members to debate or exercise any other option. (Unit Activity Report 5/20/08
p 5, Exhibit C)
ELECTIONS
31. The By Laws Article IV Sections 1, 2, 4-9 and Article V Sections 5-7, in
consonance with the relevant portions of MCL Title 2 Subtitles 4 and 5 and §11-109 of
the Act, set forth the rules for the annual meeting, election, term of office, vacancies and
director removal.
32. The 9/24/2001 regular meeting of the Board acknowledged its historical
failure to follow election rules (since at least 1984—Audit at 10-11, 16) and set the term
of office in compliance with the By Laws and re-established staggered terms such that
only 1-2 seats would be on the ballot each year. Defendant DeSantis, a member of the
Board since 2000, was present and participated in the 9/24/2001 regular meeting of the
Board at which the rules and term of office governing the election of directors was
clarified and re-established by act of the Board, and he accepted a 2-yr term of office
presumably in furtherance of the Board’s electorally restorative aims. (Audit at 16)
33. Defendants are routinely unresponsive to Plaintiff’s complaints regarding
alleged violations of the governing laws, failures to follow established and routine
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procedures, and electoral dysfunctions. Plaintiff informed Defendants of violations,
dysfunction and confusion regarding elections, stagger and term of office, number of
directors, identity of directors and the 2008 election via email or certified mail
(occasionally including the Attorney) 1/15/2008, 1/24/2008, 6/5/2008 and at the regular
meeting of the Board 1/25/2008, 2/26/2008, 4/22/2008, 6/2/2008. (Emails, Exhibit F)
Defendants failed and refused to respond to Plaintiff except at the 2/26/2008 regular
meeting of the Board where no action was taken except to anecdotally claim the
Association had previously established a 5-seat board, stating Defendants had no need to
document that fact and that Plaintiff could review the records himself. On or about
February 28, 2008 Plaintiff verbally requested and 3/3/2008 made a 2nd request in writing
for access to the Association’s records 1979 to present. Not until June 2, 2008 did
Defendant Comanco finally provide all the requested records. (Minutes 2/26/08, Exhibit
B; Unit Activity Report 3/20/08, 4/20/08, 5/20/08, Exhibit C)
34. The Audit shows Defendant Comanco improperly permitted Defendant Marek
to vote more proxies than allowed in By Laws Article IV Section 7 in the 2007 election.
35. The Audit shows that Defendant DeSantis voted his parent’s proxy in 2006
and 2007 in violation of By Laws Article IV Section 7 and MCL § 2-507 (which permits
the By Laws to limit voting rights, such as to whom a member may assign a proxy),
which stipulates that only members, the Declarant or Management Agent may vote
another member’s proxy. Defendant DeSantis is not a member of the Association. (Audit
at 90-92) Additionally, that he voted Defendant Frankhouser’s 2006 proxy in violation of
By Laws Article IV Section 7. (Notes at p 18)
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36. The Audit shows the 2000-2007 boards (which included Defendants DeSantis
and Frankhouser mid-2006 on) failed to comply with the governing laws and with the
resolution of the 9/24/2001 board to re-establish fidelity with the election rules of the By
Laws, as summarized below (see chart at end of Audit for additional clarity):
a. 2001: supra, at 32.
b. 2002: One director elected to an undisclosed term (Audit at 18).
c. 2003: The 7/8/2003 annual meeting was adjourned to 7/22/2003 for
lack of quorum; the 7/22/2003 reconvened annual meeting was adjourned for
lack of quorum even though votes in person and by proxy were available, in
violation of MCL § 2-501(a), § 11-109(c)(8) and Article IV Sections 1, 2, 8
which require an annual meeting to elect directors and specify that any
number of Members present at a reconvened meeting shall constitute a
quorum suitable for transacting any business. Defendant DeSantis’ 2003 2-yr
term expired; no record indicates he informed the 2003 Board or Defendant
Comanco of the 9/24/01 Board’s findings and corrective actions. The
members of the 2003 Board including Defendant DeSantis knew or should
have known and comprehended the election rules in the governing laws,
which supports Plaintiff’s inference this tactic was used to hold over directors
without election. (Audit at 19-22)
d. 2004: No annual meeting held or unclear from records. All directors
appear to be informally held over. No record indicates Defendant DeSantis
informed the 2004 Board and Defendant Comanco of the 9/24/01 Board’s
findings and corrective actions. (Audit at 21-22)
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e. 2005: All five (5) seats on the Board placed on the ballot in
contravention to the By Laws and the act of the 9/24/2001 Board. Those
elected were assigned an unspecified term of office based on vote counts.
With 18 votes, Defendant DeSantis certainly would have been expected to
receive a term of 2 or 3 years under the vote count scheme, yet the names on
the 2006 ballot indicates the 2005 Board alleged a 1-yr term for all directors
which created contradiction regarding the 2006 election, as below. No records
indicate Defendant DeSantis informed the Board or Defendant Comanco of
the 9/24/01 Board’s findings and corrective actions. (Audit at 23)
f. 2006: The extant call for nominations shows Linda Williams and
Laura Goldblatt with continuing terms and not to be nominated, although the
subsequent ballot called for five (5) directors to be elected, including Linda
Williams. (Notes at 18) Defendant DeSantis, Don Walton and Linda Williams
were placed on the 2006 ballot when they had been elected in 2005 to what
were lawfully statutory 3-yr terms, though not Laura Goldblatt. However,
even allowing for the fact the Board was improperly and in violation of the
election rules in the By Laws handing out terms of office based on vote count
(highest 3 years, next 2 years, last 1 year), it is impossible under this scheme
for four (4) members of the Board out of five (5) to receive 1-yr terms, as
evidenced by the fact that Defendant DeSantis, Don Walton and Linda
Williams were placed on the ballot and Laura Goldblatt was not (nor did she
continue her term onto the 2006 Board), inferring that her term expired and
she chose not to run again or she resigned without remark in the records. The
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fifth member of the Board Mike Evans (elected in 2005) moved from the
community in December 2006 after the 2006 election but the records do not
show a resignation. The inference is that four or all five members elected in
2005 were awarded 1-yr terms in complete contradiction to and in violation of
the By Laws. No records indicate that Defendants DeSantis or Comanco
informed the Board of the 9/24/01 Board’s findings and corrective actions, of
which they were well aware, having participated. Charlene Julien and Tom
Knighten were thereby on the ballot and elected. The Board handed out the
following terms: Defendant DeSantis 3 years; Don Walton 3 years; Linda
Williams 3 years; Charlene Julien 1 year; Tom Knighton unknown. (Audit at
24-41 and chart)
g. 2007: The annual election was set for 7/24/07. The 5/17/07 call for
nominations shows Defendants DeSantis and Frankhouser, and Charlene
Julien with continuing terms and not to be nominated. (Notes p 20) Defendant
Comanco sent to homeowners 6/12/07 that “There will now be five (5)
Directors elected for a three-(3) year term.” On 6/13/07 the Unit Activity
Report shows a new annual election set for 7/31/07. (Audit at 44-48) A
subsequent 6/27/07 call for nominations shows only Defendant DeSantis with
a continuing term and not to be nominated. (Notes at 20) The Association
attorney in his 5/9/2008 letter to the Association alleges Don Walton resigned
prior to this election though there is no record of it. (Audit at 43) Linda
Williams did resign and Defendant Frankhouser was elected to her seat by the
Board 10/26/2006. (Audit at 39) Charlene Julien was placed on the ballot
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(Audit at 49) and Tom Knighten had already been unlawfully removed at a
secret 4/3/2007 special meeting of the Board. (below at 63) Defendants Helpa,
Marek and Plaintiff were elected to 3-yr, 2-yr and 1-yr terms, respectively,
according to vote count which was in violation of the election rules in the By
Laws. (Audit at 52-53) Defendant Frankhouser, serving in the Linda
Williams’ vacancy, was elected to an unspecified term and Defendants have
no documented idea—nor have they to date been willing to discuss—when
her term expires. (Audit at 54)
h. 2008: At the 3/25/2008 regular meeting of the Board (at which
Plaintiff was absent) Defendant Board members voted to call the annual
meeting for July 17, 2008 although Article IV Section 2 mandates July 1.
Defendants have not scheduled the 2008 election, as evidenced by the fact
they have not called for nominations in compliance with §11-109(c)(13) of the
Act that would permit an election by July 17, 2008. Defendants have failed
and refused to respond to Plaintiff’s written requests to schedule the 2008
election. However, Defendants have yet to establish whose term expires and
when, how many seats are currently on the Board (due to Tom Knighten and
Charlene Julien’s unlawful removal or exclusion from the Board, the election
of four additional members in 2007 and Defendant DeSantis’ seat), as well as
the correct term stagger. In fact, upon information and belief and in Plaintiff’s
hearing Defendants informed the Association attorney at the 2/26/2008
regular meeting of the Board that Defendants DeSantis and Frankhouser’s
terms were continuing through 2009, that the 1-yr term based on vote count
22
awarded to Plaintiff at the 9/25/2007 regular meeting of the Board would be
hereinafter two years and hence there was no need for a 2008 election. The By
Laws and Maryland laws notwithstanding, and without the faintest credible
and documented idea as to the current electoral status and composition of the
Board, Defendants do not at this time appear to believe an annual election is
warranted or required. Based on Defendants’ information given over
Plaintiff’s protests at the 2/26/08 regular meeting of the Board, the
Association attorney stated Plaintiff’s elections dispute need not be resolved
until sometime “next year,” and in his unapproved 5/9/2008 letter to the
Board, stated that no election is required in 2008, in frank violation of the By
Laws and the will of the 9/24/2001 Board which mandate an annual election
with at least 1 seat on the ballot. Defendants knew or should have known said
information to the attorney was false, misleading, and could be construed and
is so construed by Plaintiff as conspiracy, collusion, constructive fraud and
fraud in the inducement in furtherance of maintaining their positions on the
Board. (Audit at 60-69)
i. Additionally, the Attorney and Defendants failed and refused to
respond to Plaintiff’s 5/23/2008 certified letter and 5/27/08 email of same,
“What records, if any, were provided to you in response to your 4/16/08
request to Joe DeSantis for ‘factual background information’ so that you did
not ‘make any incorrect assumptions of fact when reaching [your]
conclusion’?” (Email “Notice of Complaint to the office of attorney general,”
Exhibit F)
23
37. Defendants have individually and collectively failed and refused to respond to
a single communication by Plaintiff regarding the 2008 election since 1/15/2008 except
Defendant DeSantis’ two statements that the issue is tabled until the February and now
the June regular meeting of the Board (1/22/08 minutes, 5/27/08 regular meeting of the
Board, no minutes available) and discussion based on false or anecdotal information at
the 2/26/2008 regular meeting of the Board.
38. Plaintiff attempted at the 5/27/2008 regular meeting of the Board a motion to
table the agenda until the election issues were resolved. Defendant DeSantis refused the
motion, refused to permit a vote, and instead declared the election issues tabled until the
June 24, 2008 regular meeting of the Board (now surreptitiously rescheduled to June 19,
2008 to a different venue). Plaintiff then attempted a motion to reject the agenda;
Defendant DeSantis said the agenda does not require a motion and refused to permit a
vote. Plaintiff requested the recording secretary include the above in the minutes.
39. On 6/2/08 Plaintiff requested Defendants stop delaying a resolution to the
elections issue so they could lawfully hold elections and requested a special meeting in
advance of the 6/24/08 regular meeting. On 6/5/08 Plaintiff informed Defendants they
should not conduct Association business while the election and Board membership issues
remain unresolved. On 6/12/08 Plaintiff requested the Attorney provide a second
recommendation to resolve the election issues in keeping with the By Laws. Defendants
were unresponsive to each. (Emails “2008 Elections,” “7 Board member seats,” Exhibit
F)
24
40. Defendants are in full knowledge of the statutory 3-yr term for directors and
the rules regarding proxy voting as evidenced by the 6/19/2007 Reschedule Date for
Annual Meeting Notice. (Exhibit G)
41. Based on Defendant DeSantis’ eight years on the Board, his eight-year history
of violations of the governing laws of the Association, Defendant Frankhouser’s
participation in unlawfully removing Tom Knighten at an unlawful special meeting of the
Board, the manipulation of terms for Board members, their refusal to diligently
investigate or take timely action on Plaintiff’s complaints, it is inconceivable that their
violations result from the ignorance of volunteers; hence, Plaintiff has openly called upon
them to resign in the best interests of the Association. Plaintiff therefore asserts said
Defendants are making every effort as enumerated in 36.g above to avoid elections,
substantive discussion in an open meeting of the facts and violations derived from the
Association’s records, the restoration to the Board of unlawfully removed Directors, and
to instead craft in secret planning sessions that exclude Plaintiff and the Members to
continue business as usual as enumerated herein and unencumbered by the governing
laws.
OPEN MEETINGS
42. Section 11-109(c)(6) of the Act requires that, except as provided in §11-109.1
of the Act, “a meeting of a governing body shall be open and held at a time and location
as provided in the notice or bylaws.”
43. Article V Section 13, in consonance with MCL § 4-408(a) and (b)(1) sets
forth the Board’s quorum as a majority of directors, and that a vote by a majority of
directors at a duly called meeting with quorum shall constitute an act of the Board.
25
44. Article V Section 14, in consonance with § 4-408(c), permits action by the
Board outside of a duly called regular or special meeting of the Board if such action is
taken with the unanimous, written consent of the Board and certain other statutory
requirements are met.
45. The Audit and facts enumerated below support Plaintiff’s assertion that
Defendants routinely violate the rules and laws governing open meetings and voting
through the use of email, personal meetings, possibly “planning sessions,” and other
means not heretofore discovered.
46. The Members were not notified of the following special meetings of the
Board: 2/7/1994, 6/28/1999, 7/12/2001, 4/3/2007, 12/10/2007, 1/17/2008.
47. There are no minutes or records for the following special meetings of the
Board in violation of MCL §2-111: 7/12/2001, referenced in the 8/29/2001 minutes
(Notes p 12); 4/3/2007, referenced in the 5/1/2007 minutes (Audit at 33, 34) Plaintiff and
the Members remain uninformed as to what deliberations or actions occurred therein.
48. The records do not show Members were notified of the following regular
meetings of the Board: 1/24/2006 apparently rescheduled to 1/31/2006; 4/24/2007
rescheduled to 5/1/2007; 5/22/2007 rescheduled to 6/6/2007.
49. At the following regular meetings of the Board Defendants took official
actions without quorum: 1/24/2006, 6/27/2006 (Notes p 16-17)
50. The following closed meetings occurred on Comanco’s premises that do not
meet the requirements of §11-109.1 of the Act: 9/25/2007, 10/4/2007.
51. Defendant Comanco told the Board in a 5/16/2008 email, “Please also be
advised that Boards are permitted to hold planning sessions with Board members only to
26
discuss these matters prior to the meeting to save time and the Associations money.
These types of meetings are generally held at a neutral location such as a school, church,
police station or a members home. It is recommended that very lengthy discussions take
place prior to the Board meetings. The Board should have a list of specific instructions
and requests. All voting will take place during the Board meetings only.” Comanco’s
advice flagrantly violates the open meeting requirements of the Act, which states in 11-
109(c)(6) that “a meeting of a governing body shall be open and held at a time and
location as provided in the notice or bylaws;” such a planning session is certainly a
meeting of a governing body and would certainly irreparably deprive Members full
deliberative information and input on subsequent actions by the Board on any topic that
comes before it. In fact, such a planning session appears designed to organize and settle
upon a course of action regarding any business before the Board while excluding
Members and even directors from deliberations. (Unit Activity Report 5/20/08, Exhibit
C)
52. Upon information and belief Defendants and previous boards failed and
refused to notify Members of any meetings of the Architectural, Grounds, Landscaping or
Parking committees.
53. A 5/24/2008 written report to the Board by Defendant Helpa shows he formed
a Traffic Safety committee, selected himself as Board representative, solicited four
homeowners to serve on the committee, and scheduled a committee meeting with Anne
Arundel County for 3pm June 9, 2008 without Board or Board president authorization.
Notwithstanding the Board president’s silent acquiescence providing substantive
authorization pursuant to his statutory authority, the Board failed and refused to notice
27
the Members of the committee meeting. Further, Defendant Helpa unilaterally and
without knowledge or authorization by the Board, changed the terms and scope of work
of a contract to repave two streets that had been approved by vote in open meeting
4/??/2008. (“Report on Coordination with County Representatives,” Exhibit G)
54. Defendant DeSantis appears in the records beginning August 2000 and
appears to chair the Architectural Committee alone. The record shows he adjudicates
architectural/landscaping requests in private or in consultation with the homeowner,
without notice to the Members or an open meeting, and reports his completed
adjudications at regular or special meetings of the Board usually—though not always—
without debate or formal ratification. Plaintiff has not come across any instance of the
Board challenging Defendant DeSantis’ adjudications. (Notes, Exhibit E)
EMAIL VOTING BY THE BOARD
55. Email, telephone and conversational voting is defined as voting outside of a
duly constituted meeting by email, telephone, or in personal conversation with other
Board members in the street, in a living room, or any other venue (hereinafter, “email
voting”). Voting via email is the most common such practice, but Defendants vote by
telephone and while meeting together in conversation, as well. Email voting is strictly
informal; no motion is formally made and no second is ever provided.
56. Defendants know or should know email voting by majority violates By Laws
Article V Section 14, MCL §2-408(c) §11-109(c)(6) of the Act as well as the Board’s
own policy resolution 2/26/08 reserving majority email votes for bonafide emergencies
where danger to life or property was imminent and conclusive.
28
57. The Board voted at its 2/26/08 regular meeting to implement the Attorney’s
advice that “in the event of an emergency at the next Board meeting the prior decisions
taken with majority Board approval will be disclosed and ratified.” (Minutes 2/26/08,
Exhibit B)
58. Defendants DeSantis, Frankhouser and Marek voted between 2/29-3/5/2008 to
authorize non-emergency insured repairs to 1011 Broderick Court’s soffit. Plaintiff
complained via 3/3/08 email and Defendants excluded him from further communications
on this subject and Defendants’ subsequent email vote until he read them in the March
25, 2008 Management Report. Defendant DeSantis telephoned Defendant Comanco
3/5/08 “The majority agrees to fix the wind damage at 1011 Broderick Court. Please
move forward with the work.” Defendant Comanco informed contractor Richard
Harrison 3/5/08 “Your proposal was accepted. Please move forward with the repairs to
1011 Broderick Court at your earliest convenience.” (Unit Activity Report 3/20/08, pp 4-
7, Exhibit C) Defendants know or should know these actions violate By Laws Article V
Section 14, MCL §2-408(c), §11-109(c)(6) of the Act because they do not meet the
requirements of §11-109.1 of the Act and the Board’s own 2/26/2008 policy on the
Attorney’s advice reserving majority vote email for bonafide emergencies involving
imminent danger to life or property.
59. On 6/12/08 Defendant Comanco misrepresented the work requested for
drainage repairs by 1108 Soho Court and solicited an email vote by the Board for
approval. Defendant DeSantis voted “yes” without informing the Board by distributing
the request form although Defendant Comanco had provided it to him. Defendant Marek
voted yes after receiving the form. Defendant Helpa demurred and Defendant Comanco
29
attempted to force the vote, “Please keep in mind that if this not addressed and she
requests to file a claim through the master policy [for water damage from rain backup],
the Association may be responsible for the repairs to her unit.” (Email “115-Charing
Cross,” Exhibit F)
60. The 3/25/2008 minutes of the regular meeting of the Board state, “Kathy has
drafted a letter and the Board will get together and review the letter.” Plaintiff asserts and
maintains this cavalier attitude with the open meetings requirement of the Act and the
irreparable harm it conveys to Members is typical of Defendants and absent relief by this
Court will continue (Minutes 3/25/08, Exhibit B).
VACANCIES AND DIRECTOR REMOVAL
61. Article V Section 6 permits the Board to fill a vacant seat that results from any
cause except removal of a director by the Members (and in MCL §2-407(b) which results
from any reason other than an increase of directors). A vacancy shall be filled until the
next annual meeting of the members and the person elected to the vacant seat shall serve
out the unexpired portion of the vacated term.
62. Article V Section 7, in consonance with MCL §2-406(a) permits the Members
at a regular or special meeting of the Members duly called for such purpose to remove a
director with or without cause and to there and then elect a successor to fill the vacancy
thus created.
63. The Audit shows Tom Knighten, elected 2006, was unlawfully removed from
the Board by majority vote of the directors in violation of Article V Section 7 and MCL §
2-406 at a special meeting of the Board 4/3/2007 that was convened without notification
to the members. Defendants DeSantis, Frankhouser and Don Walton voted to remove
30
Tom Knighten. Upon information and belief Director Charlene Julien, Defendant
Comanco and a recording secretary were not present. There are no records or minutes of
this meeting; it was reported in the minutes of the 5/1/2007 regular meeting of the Board
as follows, “At this time it was stated a special meeting was held and it was voted on and
passed that Tom Knighton is no longer on the Board.” (Audit at 32-38)
64. The Audit shows that Defendants in 2003 failed and refused to inform the
Members that Defendant DeSantis’ term as director was expired and should be on the
2003 ballot (Audit at 19-20); in 2004 failed and refused to inform the Members that
Defendant DeSantis’ term as director remained expired and should be on the 2004 ballot.
(Audit at 21-22) Plaintiff asserts and maintains Defendants DeSantis, Comanco (in full
knowledge of the 9/24/01 Board’s election findings and corrective actions) and other
Defendant Board members failed and refused to hold elections and assign terms in
compliance with the governing laws.
65. The Audit supports Plaintiff’s assertion that in 2007 Defendants DeSantis,
Frankhouser and Comanco violated the rules and laws governing the removal of a
director 4/3/2007 (Audit at 31-38) and established two false vacancies on the Board by
misrepresenting the statutory term of office to Directors with continuing terms. (Audit at
49-50).
66. Plaintiff asserts and maintains that a thorough and careful reading of the
Association’s documents at least back to 2005 supports the inference that a co-dependent
relationship where proper boundaries between property manager and Board liaison seem
to have dissolved exists between Defendants Comanco and DeSantis where Comanco
appears to act as Association president, and which appears to provide protection and
31
cover to each other, to assist and enforce a conspiratorial style and method of Association
governance and its enforcement against recalcitrant directors (2/26/08 Defendant
Comanco character defense of Defendant DeSantis, Unit Activity Report 3/20/08 p 2,
Exhibit C).
67. Defendant Comanco has been the Association’s property manager since 1979
and knows or should know the governing laws and facts regarding the Association’s
electoral requirements and its history. Yet the record demonstrates that Defendant
Comanco is studiously ignorant of the Association’s electoral requirements and history
and that since at least 2005 Defendant Comanco has worked with Defendant DeSantis in
such a way as to corrupt, delegitimize and make unlawful many actions of the Board.
68. Defendant DeSantis has served on the Board for eight (8) consecutive years,
was present when the 9/24/01 Board found lapses and violations in the elections and
established corrective actions. Yet, since at least 2003 Defendant DeSantis has studiously
failed and refused to employ said findings and corrective actions, to inform subsequent
boards ignorant of the 9/24/01 findings and corrective actions, and to provide
“institutional knowledge” towards lawfully compliant elections, terms, procedures for
dealing with vacancies and removal of directors, condominium maintenance and
covenants enforcement. Plaintiff asserts and maintains that the documented records
demonstrate that Defendant DeSantis is no ignorant volunteer Board member just trying
to serve his community, mistakes and all, but rather a calculating politician willfully
exploiting every opportunity and the actual ignorance of novice and volunteer Board
members just trying to serve their community in order to act by his own rules and enforce
32
them upon others rather than understand the governing laws and work within them to
legitimately reach his personal ends.
RECORD-KEEPING
69. Article XIV Section 2, in consonance with MCL §2-111 and §11-116, sets
forth the record-keeping requirements by which the Association shall maintain a record
of the acts of the Board, of the Members and of all other aspects of the business of the
Association.
70. Article XIV Section 3, in consonance with § 11-116(b) of the Act, requires the
Association to cause an audit of its books and records upon receipt of a petition signed by
at least 5% of the Members.
71. The Audit and additional facts enumerated below supports Plaintiff’s assertion
that Defendants routinely have and are violating the rules and laws regarding record-
keeping by not creating, losing or manipulating records such that Plaintiff and Members
cannot be reasonably or confidently informed of the Association’s actions.
72. Since 1982, the Board has typically and customarily held regular meetings of
the Board monthly except December, with some exceptions. The Audit indicates there are
no extant records for the following meetings of the Board, or the record is unclear if the
meeting occurred at all: 11/1982; All 1983 except 8/15/83, 9/19/83; All 1984 except
5/16/84; 3/18/1985, 7/1985, 8/1985; 6/1986; 1/26/1988, 5/1988, 6/22/1988 (notes
unclear), 8/23/1988; 2/27/1990, 4/24/1990, 6/26/1990, 8/1990; 2/19/1991, 10/22/1991;
6/1992; 1/26/1993, 7/1993; 6/1995, 7/1995; 6/1996; All 1997; All 1998; 10/1999,
11/1999; 1/2000, 3/2000, 7/11/2000 (annual meeting); 10/2000; 7/2001, 10/2001;
6/25/2002, 8/2002 (probably met 7/30/2002, Notes p 13), 11/27/2002; 2/4/2003, 3/2003,
33
5/27/2003, 8/26/2003, 12/10/2003; 1/2004 (possibly met 2/3/2004, Notes p 14),
7/14/2004 (no Plaintiff notes or no record exists); 1/2005 (no Plaintiff notes or no records
exist), 6/2005; 9/25/2007.
73. Defendant Comanco has failed and refused to maintain comprehensive and
adequate records in order to establish and maintain certain knowledge as to architectural
changes per unit and the term expiration dates of directors, as evidenced by the fact that
Defendant Comanco’s records do not match with adjudications in the minutes (1101
Soho Court, et al), and the contradicting information between the 9/27/07 and 10/17/07
Board/Committee Rosters and that asserted by Defendants. (Audit at 53-54, 64)
74. Defendant Comanco manipulated a 1/24/2008 email from Plaintiff to the
Association attorney and Defendants to remove the subject header “Charing Cross Board
of Directors ordered to cease and desist until legal membership of Board is determined,”
and replaced it with “RE: Legal Membership of Board” which, at first glance, makes it
appear a benign communication. Plaintiff asserts and maintains this is a willful
falsification of the Association’s records in violation of MCL § 2-111 and §11-116 of the
Act. (Unit Activity Report 2/21/08 p 3, Exhibit C)
75. Defendant Comanco excluded from the Unit Activity Report the 5/1/08 –
5/27/08 email thread between Plaintiff and Defendant Comanco regarding the 2007
annual meeting minutes and election records which Defendant Comanco claimed were
lost at the same time the Attorney was preparing for Defendant DeSantis unauthorized
legal advice regarding the same event. Plaintiff infers that Defendant Comanco did not
want Plaintiff aware the attorney may have been using the 2007 records to inform his
opinion, or because she was attempting to delay Plaintiff reviewing the facts until after
34
Defendants had taken action in accordance with the Attorney’s 5/9/08 letter at the
5/27/08 regular meeting of the Board. If so, it supports the inference Defendant Comanco
colluded and conspired with Defendant DeSantis to lie and fraudulently prevent Plaintiff
from viewing the 2007 records he had been requesting to see since 2/28/08. (Unit
Activity Report 5/20/08, Exhibit C)
76. Furthermore, Plaintiff instructed Defendant Comanco 5/15/08 that if the
records could not be found, she must notify the Board, which she did not. Defendant
Comanco provided the regular meeting minutes for review, but withheld the annual
meeting minutes and elections records until Plaintiff additionally requested them (but
would not permit review until after the 5/27/08 Board meeting). Plaintiff infers
Defendant Comanco did not want the Board to know she lied and colluded with
Defendant DeSantis to effect a specific outcome at the 5/27/08 Board meeting. (Email,
“2007 Annual minutes,” Exhibit F)
77. Defendants refused to act on Plaintiff’s information that records were missing,
or to cause even a cursory informal audit to inform them as to its veracity.
78. On May 28, 2008 Plaintiff submitted in person to Defendant Comanco a
petition signed by 7% of the Members demanding an audit of all Association non-
financial records to commence no later than 30 days from the date presented to the Board
at its May 27, 2008 regular meeting (Plaintiff forgot to present it to the Board until after
the meeting was adjourned and did so to Defendant Comanco the following day) (Receipt
and copy of petition, Exhibit G)
35
79. In a June 8, 2008 email addressed to Defendant Comanco and copied to
Defendants, Plaintiff requested information as to when the audit petition would be
disseminated to the Board. All Defendants are unresponsive to date.
80. As of June 15, 2008 Plaintiff, as vice president of the Board, has received no
communication from Defendant Comanco that the audit petition was disseminated to the
Board or that Defendant Comanco is acting on the petition.
81. Upon information and belief Plaintiff talked to one or more petition
signatories during her follow-up Spring walk-through the last week of May or the first
week of June, 2008, saying the cost to the Association of the petition would be in the
thousands and that if they understood this cost they never would have signed or would
remove their signatures. In fact, Plaintiff asserts and maintains it is Defendant Comanco
who cannot account for the Association’s records contractually in its keeping, and is
therefore liable to the cost. Defendant Comanco was unresponsive to Plaintiff’s 6/5/08
complaint of same. (Email “Pulling signatures from audit petition,” Exhibit F)
82. On June 6, 2008 Defendants caused a general notice to be sent to all Members
informing them the duly called regular meeting of the Board June 24, 2008 was cancelled
and calling a regular meeting of the Board June 19, 2008. The notice included
information on rear yards, 1150 Jeffrey Drive, grills on decks and parking/fire lanes, but
no information on the audit petition already in Defendant Comanco’s hands for nine (9)
days, or the substantive elections and Board membership issues on the agenda. As of June
15, 2008, Defendant Comanco has failed and refused to notify the Board and Members of
the audit petition.
COVENANT ENFORCEMENT
36
83. Further Discovery will demonstrate that Defendants, in violation of By Laws
Article XI, routinely and arbitrarily use “grandfathering” as a means to ignore
unapproved or non-conforming changes made to units without prior or post Board
approval; approve or “grandfather” architectural change requests after the work is
complete; approve requests via email without notifying the entire Board or viewing the
required documentation; arbitrarily outright ignore unapproved changes such that
Plaintiff and Members are irreparably denied their right to be informed of requested
changes or registering their response with the Board prior to approval/denial. The records
suggest the Association’s standard operating procedure for handling many unapproved or
non-conforming changes is to “grandfather” them with an unenforced stipulation to
remove the change at sale or upon life-cycle replacement of the change to require
conformity. Members are not informed that the substantial presence of undocumented
non-conforming changes throughout the community caused in part by Defendants (as
well as previous boards) effectively waives enforcement of these covenants. (Notes at 23-
24)
84. Further Discovery will demonstrate that Defendants arbitrarily, whimsically,
capriciously and captiously adjudicate architectural/landscaping change requests using an
amalgam of written and unwritten rules and regulations that contradict and cross-cancel
such that neither Plaintiff as a Board member nor Members can clearly understand what
changes to a unit are permitted or prohibited and must simply go on Defendant DeSantis’
word when he invariably informs a homeowner via telephone prior to informing the
Board if a requested change passes muster. (Minutes 1/17/08, Exhibit B; Email “Charing
Cross – RE: Urgent – Charing Cross – 1011 Broderick Court,” Exhibit F)
37
85. Upon information and belief and in Plaintiff’s hearing, Defendants maintain
that the Act or other relevant laws do not require they have any written rules and
regulations at all, so long as the Board does not appear arbitrary; and that architectural
rules and regulations do not fall under requirements of § 11-111 of the Act.
FIDUCIARY DUTY
86. MCL § 2-405.1 establishes the standard of care required of a director.
87. Plaintiff asserts and maintains that Defendant Board members fail their duty
to act in good faith and with the care that an ordinarily prudent person in a like position
would use under similar circumstances, as follows:
a. Good faith: Pursuant to MCL §2-405.1(b)(2) Defendants are acting in
bad faith because they have knowledge of the facts and matters enumerated in
the instant complaint and know or should know their reliance on conflicting or
undocumented information or sources is doubtful or unwarranted.
b. Prudent person: Pursuant to MCL § 2-405.1(b)(1) Defendants are not
acting with the care of an ordinarily prudent person when they routinely deny
and dismiss Plaintiff’s researched, documented and credible complaints that
cast doubt upon sources of information Defendants have heretofore believed
reliable and competent within their professional expertise, and to then act as
though they were never informed…business as usual.
88. Plaintiff asserts and maintains Defendants fail their duty of loyalty:
a. No fair process. Defendants routinely ignore established and routine
procedures incumbent upon them in order to reap a benefit to themselves or
their “agenda” while placing the Association at risk of irreparable harm, such
38
as ignoring the dispute resolution requirements of § 11-113 of the Act, the
diligent investigation of the objective documentation underlying Plaintiff’s
instant complaint, and complying with the open meeting and record-keeping
requirements of the Act and MCL.
89. Plaintiff asserts and maintains Defendants fail their duty of care:
a. Business judgement rule: With regard to Plaintiff’s instant complaint,
Defendants fail at almost every step to pay attention and try to make good
decisions that are not completely irrational. Since 1/15/08 Defendants have
acted irrationally in their efforts to ignore the 9/24/01 Board’s electoral
findings and corrective actions, the rules and laws governing the issues herein
enumerated and the substance of Plaintiff’s instant complaint by sticking their
heads in the sand, circling the wagons and attempting to act as a 4-member
board, short-circuit Plaintiff’s efforts to resolve the issues enumerated herein
by conducting closed meetings to plan and enact counter strategies that in
every instance have collapsed under the weight of their faulty fact and logic
(i.e., efforts at 2/26/08 meeting to dismiss Plaintiff’s complaints and send him
to get lost in the records, if he even bothered; failed efforts to prepare a legal
opinion the Board planned to enact at the 5/27/08 meeting and their likely
efforts at the 6/19/2008 meeting to deny or “spin” violations documented
herein).
90. Plaintiff asserts and maintains Defendant DeSantis (who routinely keeps the
agenda and other plans undisclosed until a meeting is called to order) and
other Defendant Board members fail their duty of disclosure and to inform:
39
a. Most crucially, Defendant DeSantis failed and refused to inform
boards subsequent to the 9/24/01 Board of its electoral findings and corrective
actions such that the Association could perform lawfully compliant elections.
b. Defendant DeSantis on numerous and routine occasions failed and
refused to inform the Board of his actions in soliciting legal opinions from and
holding private consultations with the Association attorney; instructing
Defendant Comanco to take official actions, write and send letters, or expend
monies allegedly on behalf of or authorized by the Board but in fact without
the Board’s knowledge and/or vote;
c. Defendant DeSantis fails and refuses to inform the Board every time
he refuses to respond to a request—written or verbal—for information
pertinent to the Association’s affairs.
d. Defendants fully understand their fiduciary duty to inform as
evidenced by Defendant DeSantis’ 9/27/07 email to Comanco and the Board:
“Since we have new Board members, I should have stated at the last Board
meeting, that all emails should be sent to Ruth and all Board members so we
can all be kept informed.” (Unit Activity Report 10/22/07, Exhibit C)
e. Upon information and belief and in Plaintiff’s hearing, the Attorney
informed the Board at its 12/10/07 special meeting and its 4/22/08 regular
meeting that the By Laws do in fact require unanimous, written consent of the
Board prior to the Board taking any action outside of a duly called meeting, as
well that communications must include all directors.
40
f. Defendants routinely withhold information from the entire Board, fail
to inform all Board members of pertinent information in a timely manner, act
unilaterally and commit the Association without the knowledge or approval of
the Board, and vote by majority via email. Plaintiff asserts these actions have
the effect of committing the Association to actions favored by a select
minority of the Board or the property manager which knows it can’t succeed
at a regular meeting of the Board, does not want to wait or go to the trouble of
arguing their case and excludes pertinent information from other Board
members and the Association’s members. Plaintiff asserts such acts are high-
handed, captious and whimsical in manner, denies opposing Board members
or Association Members a forum to dissent, creates a venue for irrevocably
committing the Association in which other Board members or Members of the
Association are powerless to change the outcome.
g. Defendants were unresponsive to Plaintiff’s 2/26/08 email which
stated, in part: “Notifying the other board members via the monthly unit
activity report after the fact of any private communications and unilateral
decisions via email or phone, when the full board should be in the immediate
loop regarding any and all communications regarding association business,
does not convert the private communications…to public communications such
that the full board of directors could reasonably consider itself informed of the
board president’s activities allegedly on its behalf. Further, the portion of the
contract you quoted does not authorize the board president to take actions on
behalf of the board, to spend association money, to communicate with the
41
association attorney on his own, to direct Comanco to take any action, or to do
any other thing on his own volition without prior board approval other than to
liaise with Comanco…Hence, as in routine past instances, the board president
has kept the full board in the dark as to his intentions for the 2/26/08 meeting,
planning to share them only when the meeting has commenced, and that
constitutes the board president acting privately, outside of board control, and
without authorization. And if, as you say, the attorney’s agenda includes ‘all
of the concerns’ I have brought to the board’s attention, how is it that you, the
attorney and the board president have known that information, but, until your
letter today, the rest of the board has not? In fact, the agenda should be
circulated among all board members as it progresses through drafts, until it is
formally adopted by vote at the board meeting.” (Unit Activity Report
3/20/08, Exhibit C)
ACTS BY COMANCO
91. There is no anecdotal or documented record that shows Defendant Comanco
ever informed the boards subsequent to the 9/24/2001 Board of its electoral findings and
corrective actions, such that the Association’s future elections could be held in
accordance with the Board’s intent and the governing laws.
92. Plaintiff asserts and maintains Defendants DeSantis and Comanco maintain
such a close relationship that they routinely collude and conspire to act as the Board
without the Board’s knowledge or voting consent.
93. The records of the Association demonstrate Defendant Comanco routinely
initiates or solicits email votes from the Board on a variety of issues not meeting the
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requirements of § 11-109.1 for a closed meeting and thereby irreparably harm Plaintiff
and Members, as below.
a. 3/29/2006: The Unit Activity Report shows that Defendant Comanco
mailed a letter approving 1009 Broderick Court’s architectural change request
3/29/2006, entered the approval into its database 3/31/2006, yet the Board did
not approve this request in an open, duly called regular meeting until
5/23/2006, nearly two (2) months later. (Notes p 17, Exhibit E)
b. 10/05/2007: Defendant Comanco informed the Board via email that an
email vote was approved by majority vote, in violation of Article V Section 14
and Maryland Corporation Law § 2-408(c), and informed the vendor JAMS it
was authorized to conduct work. (Unit Activity Report 10/22/07, Exhibit C)
c. 1/17/2008: The Unit Activity Report 2/21/08 shows Defendant
Comanco entered approvals and generated an “approved as modified” letter
for a 1011 Broderick Court architectural change request possibly prior to the
non-noticed 7pm 1/17/2008 special meeting of the Board wherein the request
was actually “approved as modified” following debate with the homeowner.
Plaintiff presumes this action was decided and enacted before the meeting and
the debate with the homeowner was inconsequential.
d. 1/22/2008: Upon information and belief and in Plaintiff’s presence,
Defendant Comanco refused on several occasions to permit Defendant
DeSantis or the Board to discuss Plaintiff’s complaints regarding number of
directors permitted on the Board and terms of office, even though it was on
the published agenda. She prompted Defendant DeSantis numerous times to
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recall their previous discussions on the matter (once using her elbow as
emphasis), that Defendant DeSantis could adjourn the meeting at any time
without a vote by the Board if he wanted, that he must table the issue until at a
meeting with the Attorney present (and did so without a vote over Plaintiff’s
objections). Plaintiff (as well as the Board) was prevented and unable to
pursue these agenda items by Defendants Comanco and DeSantis. Plaintiff
asserts and maintains the minutes of the meeting were sanitized and
manipulated to remove all references to the debate as though it had never
taken place. (Minutes 1/24/2008, Exhibit B) Plaintiff asserts and maintains the
2/26/2008 minutes were manipulated to show a unanimous vote for the
1/17/2008 and 1/22/2008 minutes when in fact Plaintiff abstained on both.
Plaintiff was absent from the 3/25/2008 regular meeting of the Board wherein
the 2/26/2008 minutes were approved.
e. 2/5/2008: Defendant DeSantis instructed Defendant Comanco via
telephone to fax the November, December 2007 and January 2008 minutes of
the Board to the Attorney, incurring expense without Board knowledge or
approval. Defendant Comanco executed the instruction but did not not notify
the Board. (Unit Activity Report 2/21/08, Exhibit C)
f. 2/15/08: Defendant Comanco telephoned Defendant DeSantis, “Do
you realize that Chris is continuing to cc Mike Neall on all his emails?”
Defendant DeSantis’ telephone response: “I know but want to wait to address
this issue at the next meeting. I know you are concerned about the costs that
are being incurred by his emails.” (Unit Activity Report 2/21/08, Exhibit C)
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Plaintiff asserts and maintains this exemplifies a vaguely familial rather than
professional relationship between the Board president and the Association’s
property manager.
g. 2/26/2008: Defendant Ruth Angell informs the Board in response to a
2/26/08 email from Plaintiff that, “There never have been, nor will there
ever[y] be private communications, hence the management report.” Yet,
Defendant Comanco oversaw the cancellation of the June 24, 2008 regular
meeting of the Board, and the calling of the June 19, 2008 regular meeting of
the Board without a vote by the Board, and none of this was communicated to
the Board until Plaintiff requested verification of a homeowner’s tale.
Defendants were unresponsive to Plaintiff’s request for information as to how
the meetings were cancelled and called. (Unit Activity Report 3/20/08, Exhibit
C)
h. 3/25/2008: Defendant Comanco advised “the Board can approve the
architectural request with the stipulation that when the [1120 Soho Court]
homeowner sells the house the balcony needs to be put back to its original
state.” The statement is astonishing in its degree of negligence and
incompetence considering Defendant Comanco’s negligent complicity in the
balcony issue through its failure to notice the change and to maintain records
in compliance with law and its contract such that the change’s conformance
could be adequately verified. Moreover, the balcony cannot be returned to its
original state because Anne Arundel County building code does not permit the
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structure, a fact repeatedly made known in writing to—and ignored by—
Defendants.
i. 4/2/2008 - 4/3/2008: DeSantis, Marek and Frankhouser voted “yes,”
Helpa voted “no” via email to a proposal through Defendant Comanco to
provide Walden Community Pool with Association members’ mailing
addresses. 4/2/08 Plaintiff provided a different motion and requested a second;
the Board ignored it. On 4/3/2008 Defendants reversed themselves and voted
no to the original proposal. With full knowledge that majority vote via email
violates the governing laws, Defendant Comanco informed Walden
Community Pool that “the majority of the Board has declined the request for
mailing labels at this time. Plaintiff asserts and maintains Defendant Comanco
conveyed to Walden that the Board’s majority vote by email was a lawful act
of the Board in full knowledge it was not. (Unit Activity Report 4/15/08,
Exhibit C)
j. 5/1/2008: Defendant Comanco emailed the Board: “After reviewing [a
letter from Association attorney Michael S. Neall], please send approval of
your decision via e-mail at your earliest convenience. This is a matter that
should be addressed prior to the next meeting.” Plaintiff and Defendant Helpa
refused to vote due to the seriousness of the issue, and Defendant Comanco
conceded 5/5/08 that, “It is not necessary to make a decision before the
meeting regarding [the homeowner]. (Email “115-Michael Neall,” Exhibit F)
Members’ rights to due process and full access to the deliberations of the
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Board are routinely placed at irreparable risk by Defendants’ recourse to email
voting in lieu of open meetings.
k. 5/5/2008: Defendants were unresponsive to Plaintiff’s email
requesting clarification of a roof “emergency” at 1004 Shreve Court prior to
voting by email, wherein he noted that it did not appear to constitute an
emergency that warranted suspension of the normal open-meeting approval
process. Plaintiff was excluded from all further communications on this
matter. Defendants voted by majority 5/508 – 5/9/08 to approve the
homeowner’s shingle color. On 5/9/08 Defendant Comanco notified 1004
Shreve via telephone “The Board has given approval for your roof
replacement,” in violation of the governing laws. Defendants argued to
Plaintiff at the Board’s 5/27/08 regular meeting that they are authorized to
vote by majority via email pursuant to the Attorney’s 2/26/08 approval for
“emergency” action. Notwithstanding the fact this email vote does not meet
the requirements of § 11-109.1, Defendant Comanco failed and refused to
abide by the Attorney’s legal guidance at the 2/26/2008 regular meeting of the
Board that any Board approval outside of an open meeting must be a bonafide
emergency, be considered an “imperfect approval” and that such be
communicated to the homeowner so they can proceed “at their own risk.”
Plaintiff was not included in this email vote nor informed of it until he was
provided the 5/27/08 Management Report. (2/26/08 minutes, Exhibit B; Unit
Activity Report 5/20/2008, Exhibit C)
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WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiff’s Motion for
Ex Parte Temporary Restraining Order and Order to Show Cause Why a Preliminary
Injunction Should Not Issue.
Respectfully Submitted, Christopher McKeon Plaintiff, Pro Se 1120 Soho Court Crofton, MD 21114 410-271-7907 [email protected]
I DO SOLEMNLY SWEAR AND AFFIRM, under penalty of perjury, that the foregoing
Plaintiff’s Verified Memorandum of Points and Authorities in Support of His Motion for
Ex parte Restraining Order and Order to Show Cause Why a Preliminary Injunction
Should Not Issue is true and correct to the best of my knowledge, information and belief.
Christopher D. McKeon
1120 Soho Court Crofton, MD 21114 410-271-7907
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CERTIFICATE OF SERVICE I, Christopher McKeon, Plaintiff, Pro Se, do hereby certify that a copy of the foregoing Motion has been served by First Class U.S. Mail, postage paid, this day of , 2008, upon the following: Comanco, Inc. and Charing Cross Townhouse Condominium, Inc. care of Comanco, Inc. PO Box 3637, 2139 Defense Highway Crofton, MD 21114 Respectfully Submitted, Christopher McKeon Plaintiff, Pro Se 410-271-7907 [email protected]